# Ravindra Kumar Yadav v. Mukhya Abhiyanta (A-4) Vidyut Yantrik, Lucknow

- **Citation:** (2014) 3 ILRA 1142
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-08-04
- **Case number:** Civil Misc. Writ Petition No. 39852 of 2014
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ravindra-kumar-yadav-v-mukhya-abhiyanta-a-4-vidyut-yantrik-lucknow-43102
- **Pages:** 4

## Headnote

Constitution
of
India,
Art.226-
Compassionate
appointment-petitioner
being Inter mediate-after death of his
father-appointed
as
post
helper-now
claiming appointment as class III employeeheld once appointed on compassionate
ground-claim lost its lien- appointment can
not be claimed on higher post.

Held: Para-10
Applying the law on the facts of the case in
hand, it is not disputed that the petitioner
was appointed on Class-IV post under the
Dying in Harness Rules to tide over the
distress which the family was facing by the
sudden death of his father. The appointment
exhausted
his
claim,
once
right
is
consummated
any
further
or
second
consideration
for
compassionate
appointment
would
not
arise.
Compassionate appointment is not a vested
right and if such a plea is accepted it would
violate the principles enshrined in Article 14
and 16 of the Constitution of India.

Case Law discussed:
[(2007) 6 SCC 162]; [2007(2) SCALE 525];
[(1994) 6 SCC 560]; [(2003) 7 SCC 704]; 2014
(1) page 589; (2013) 11 SCC 178.

## Text

1142 INDIAN LAW REPORTS ALLAHABAD SERIES
Srivastava is, with respect, erroneous and
without
considering
the
governing
principles of the Rules framed under
Article 309 of the Constitution and cannot
be regarded as a binding precedent. The
decisions have failed to notice the
decisions of the Supreme Court and the
principles laid down in those decisions,
noted earlier.

40. We, accordingly, answer the
questions referred to the Full Bench as
follows:

(a) The law laid down by the
Division Benches of this Court in Prem
Chandra Srivastava and in Subhash
Chandra Kushwaha, that an incumbent
merely on holding an additional charge of
a higher post would become entitled to
the salary of a higher post, does not lay
down the correct position in law;

(b) The dismissal of the appeal filed
against the judgment of the Division
Bench in Prem Chandra Srivastava, by the
Supreme Court did not result in the
merger of the reasons for the decision of
the Division Benches of the Court nor did
it amount to an approval by the Supreme
Court, of the statement of law or the
reasons contained in the decision of the
Division Bench; and

(c) In the view which we have taken,
the issue raised in the referring order in
regard to the proviso to Para 49 (iii) of
Chapter VI of the Financial Handbook,
Volume II (Parts II to IV) will not
survive.

41. The reference is answered
accordingly. The proceedings shall now
be placed before the appropriate Bench
for disposal in the light of the present
decision.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2014

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Civil Misc. Writ Petition No. 39852 of 2014

Ravindra Kumar Yadav ...Petitioner
Versus
Mukhya Abhiyanta (A-4) Vidyut Yantrik,
Lucknow ...Respondent

Counsel for the Petitioner:
Sri Rajesh Yadav

Counsel for the Respondent:
Sri Q.H. Siddiqui

Constitution
of
India,
Art.226-
Compassionate
appointment-petitioner
being Inter mediate-after death of his
father-appointed
as
post
helper-now
claiming appointment as class III employeeheld once appointed on compassionate
ground-claim lost its lien- appointment can
not be claimed on higher post.

Held: Para-10
Applying the law on the facts of the case in
hand, it is not disputed that the petitioner
was appointed on Class-IV post under the
Dying in Harness Rules to tide over the
distress which the family was facing by the
sudden death of his father. The appointment
exhausted
his
claim,
once
right
is
consummated
any
further
or
second
consideration
for
compassionate
appointment
would
not
arise.
Compassionate appointment is not a vested
right and if such a plea is accepted it would
violate the principles enshrined in Article 14
and 16 of the Constitution of India.

Case Law discussed:
[(2007) 6 SCC 162]; [2007(2) SCALE 525];
[(1994) 6 SCC 560]; [(2003) 7 SCC 704]; 2014
(1) page 589; (2013) 11 SCC 178.

(Delivered by Hon'ble Suneet Kumar, J.)
3 All]. Ravindra Kumar Yadav Vs. Mukhya Abhiyanta (A-4) Vidyut Yantrik., Lucknow
1143

1. Heard learned counsel for the
petitioner and Sri Q.S. Siddiqui, learned
Chief
Standing
Counsel
for
the
respondents.

2. The father of the petitioner was
working with the respondent-Jal Nigam at
Bareilly and was murdered on 9.12.2012,
the petitioner being intermediate made an
application for appointment under the
dying in harness rules, accordingly, the
petitioner was appointed on a substantive
post of 'helper' but subsequently claimed
appointment on the post of clerk, as per
his qualifications.

3. It is contended by learned counsel
for the petitioner that the respondents had
assured the petitioner, that as and when
vacancy would arise, the petitioner's case
would be considered for appointment on
the next higher post of clerk.

4. By means of the writ petition the
petitioner is seeking a direction that the
claim of the petitioner be considered for
the post of clerk under the dying in
harness rules.

5. Sri Siddiqui, learned Chief
Standing Counsel appearing for the
respondents submits that the petitioner
had accepted the post of 'helper', which
was available at the relevant time, the
petitioner
subsequently,
cannot
turn
around
and
make
a
choice
for
appointment on a higher post. The claim
of the petitioner stood exhausted on being
appointed on Class-IV post.

6.

Submissions
fall
for
consideration.

7. Supreme Court in I.G. (Karmik)
& others vs. Prahlad Mani [(2007) 6 SCC
162 held once the appointment on
compassionate ground as per the scheme
had been completed any further or second
consideration for a higher post on the
ground of compassion would not arise.
Paras 7, 8, 9, 10 and 12 are as follows:-

"7. Public employment is considered
to be a wealth. It in terms of the
constitutional scheme cannot be given on
descent. When such an exception has been
carved out by this Court, the same must
be strictly complied with. Appointment on
compassionate ground is given only for
meeting the immediate hardship which is
faced by the family by reason of the death
of
the
bread
earner.
When
an
appointment is made on compassionate
ground, it should be kept confined only to
the purpose it seeks to achieve, the idea
being
not
to
provide
for
endless
compassion.

8. In National Institute of Technology
& Ors. v. Niraj Kumar Singh [2007 (2)
SCALE 525], this Court has stated the
law in the following terms:-

"16. All public appointments must be
in consonance with Article 16 of the
Constitution of India. Exceptions carved
out therefore are the cases where
appointments are to be given to the widow
or the dependent children of the employee
who died in harness. Such an exception is
carved out with a view to see that the
family of the deceased employee who has
died in harness does not become a
destitute. No appointment, therefore, on
compassionate ground can be granted to
a person other than those for whose
benefit the exception has been carved out.
Other family members of the deceased
employee would not derive any benefit
thereunder."
1144 INDIAN LAW REPORTS ALLAHABAD SERIES

9. In State of Rajasthan v. Umrao
Singh [(1994) 6 SCC 560], this Court has
categorically stated that once the right is
consummated, any further or second
consideration for higher post on the
ground of compassion would not arise.

10. Again in State of Haryana and
Another v. Ankur Gupta [(2003) 7 SCC
704], this Court held;

"6. As was observed in State of
Haryana v. Rani Devi it need not be pointed
out that the claim of the person concerned
for appointment on compassionate ground
is based on the premise that he was
dependent on the deceased employee.
Strictly, this claim cannot be upheld on the
touchstone of Article 14 or 16 of the
Constitution of India. However, such claim
is considered as reasonable and permissible
on the basis of sudden crisis occurring in
the family of such employee who has served
the State and dies while in service. That is
why it is necessary for the authorities to
frame rules, regulations or to issue such
administrative orders which can stand the
test of Articles 14 and 16. Appointment on
compassionate ground cannot be claimed
as a matter of right. Die- in-Harness
Scheme cannot be made applicable to all
types of posts irrespective of the nature of
service rendered by the deceased employee.
In Rani Devi case it was held that the
scheme
regarding
appointment
on
compassionate ground if extended to all
types of casual or ad hoc employees
including those who worked as apprentices
cannot
be
justified
on
constitutional
grounds. In LIC of India v. Asha
Ramchhandra Ambekar it was pointed out
that the High Courts and Administrative
Tribunals
cannot
confer
benediction
impelled by sympathetic considerations to
make appointments on compassionate
grounds when the regulations framed in
respect
thereof
do
not
cover
and
contemplate such appointments. It was
noted in Umesh Kumar Nagpal v. State of
Haryana that as a rule, in public service
appointments should be made strictly on the
basis of open invitation of applications and
merit. The appointment on compassionate
ground is not another source of recruitment
but merely an exception to the aforesaid
requirement taking into consideration the
fact of the death of the employee while in
service leaving his family without any
means of livelihood. In such cases the object
is to enable the family to get over sudden
financial crisis. But such appointments on
compassionate ground have to be made in
accordance with the rules, regulations or
administrative instructions taking into
consideration the financial condition of the
family of the deceased."

See also Food Corporation of India
& Anr. v Ram Kesh Yadav & Another [JT
2007 (4) SC 1].

12. Furthermore, Appellant accepted
the
said
post
without
any
demur
whatsoever. He, therefore, upon obtaining
appointment in a lower post could not
have been permitted to turn round and
contend that he was entitled for a higher
post although not eligible therefor. A
person cannot be appointed unless he
fulfils the eligibility criteria."

8. Full Bench of this Court rendered
in Shiv Kumar Dubey Vs. State Of U.P.
& Others UPLBEC 2014 (1) page 589
inter alia held as follows:-

"(I) A provision for compassionate
appointment is an exception to the
principle that there must be an equality of
opportunity
in
matters
of
public
3 All]. Isha Tyagi Vs. State of U.P. & Ors.
1145
employment.
The
exception
to
be
constitutionally valid has to be carefully
structured and implemented in order to
confine compassionate appointment to
only those situations which subserve the
basic object and purpose which is sought
to be achieved;

(ii) There is no general or vested
right to compassionate appointment.
Compassionate
appointment
can
be
claimed only where a scheme or rules
provide for such appointment. Where such
a provision is made in an administrative
scheme or statutory rules, compassionate
appointment must fall strictly within the
scheme or, as the case may be, the rules;

(iii) The object and purpose of
providing compassionate appointment is
to enable the dependent members of the
family of a deceased employee to tide
over the immediate financial crisis caused
by the death of the bread-earner;"

9. Supreme Court in State of Uttar
Pradesh and others vs. Pankaj Kumar
Vishnoi (2013) 11 SCC 178 held as follows:

"22. It is accepted position that the
respondent appeared in the test and could
not qualify. Once he did not qualify in the
physical test, the High Court could not
have asked the department to give him an
opportunity to hold another test to extend
him
the
benefit
of
compassionate
appointment on the post of Sub-Inspector
solely on the ground that there has been
efflux of time. The respondent after being
disqualified in the physical test could not
have claimed as a matter of right and
demand for an appointment in respect of
a particular post and the High Court
could
not
have
granted
further
opportunity after the crisis was over".

10. Applying the law on the facts of the
case in hand, it is not disputed that the
petitioner was appointed on Class-IV post
under the Dying in Harness Rules to tide over
the distress which the family was facing by
the sudden death of his father. The
appointment exhausted his claim, once right is
consummated
any
further
or
second
consideration for compassionate appointment
would not arise. Compassionate appointment
is not a vested right and if such a plea is
accepted it would violate the principles
enshrined in Article 14 and 16 of the
Constitution of India.

11. For the facts and reasons stated
herein above, the writ petition is devoid of
merit and is, accordingly, dismissed.

12. No order as to cost.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.08.2014

BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 41279 of 2014

Isha Tyagi. ..Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Narendra Pratap Singh

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Art.-14,
15Discrimination benefit of reservationbeing
grand
children
of
freedom
fighters-denial on ground of gender
being
married
grand
daughter-not
entitled
held-unconstitutional-when